Secretary of State for Defence v Persons Unknown

An interim non-disclosure order engages freedom of expression, the public’s right to receive information and open justice. A super-injunction, which also conceals the proceedings and order, is justified only in the rarest and truly exceptional cases. The applicant must provide clear and cogent evidence, satisfy the statutory threshold for interim relief, and show that secrecy is strictly necessary. The court must respect the executive’s predictive assessment of risk, but it alone decides the balance of public and private interests. It must consider whether publication may endanger life and whether the injunction may itself do so, alongside the public interest in scrutiny and transparent government. Any order must be kept under constant review and last no longer than necessary.

The Ministry of Defence sought a contra mundum injunction after a compromise of a sensitive dataset containing details of applicants under the Afghanistan Relocations and Assistance Policy. A super-injunction was granted by Robin Knowles J on 1 September 2023. Nicklin J subsequently directed a review by a judge nominated from the Media and Communication List.

Following private and CLOSED hearings on 31 October and 1 November 2023, the central issue was whether the injunction should remain in super form, be modified or be discharged. The court considered the risk of serious harm to those identified in the dataset, the possibility of unravelling protection, and the effects on press, Parliamentary and public scrutiny.

1. Disposition. The court continued the super-injunction for four weeks, subject to strict case-management directions and a further return date. The order was to remain under review.
2. Closed material procedure. The court considered that the statutory regime in the Justice and Security Act 2013 and CPR Part 82 was difficult to operate because there was no excluded party against whom disclosure obligations were owed and no special advocate could be appointed. Although the statutory gateway might be satisfied by disclosure to the court, the better course was to use the inherent jurisdiction to appoint an Advocate to the Court and replicate only the necessary safeguards. The court recognised that bespoke closed procedures are generally impermissible, but relied on the limited circumstances identified in Al Rawi v Security Service [2011] UKSC 34.
3. Applicable principles. Under the Human Rights Act 1998, the court had to protect Article 10 rights, open justice and the public interest in transparent decision-making. Relief against persons neither present nor represented required compelling reasons for non-notification. The applicant had to show that it was more likely than not that publication would be disallowed at trial, applying Cream Holdings Ltd v Banerjee [2004] UKHL 44. A super-injunction was permissible only in truly exceptional circumstances and for no longer than necessary.
4. Balancing risks. The executive’s predictive assessment of risks to life was entitled to respect, but the court, not the executive, had to decide the balance of public and private interests. Engagement of Articles 2 and 3 was not conclusive where granting relief might endanger others. The court had to balance the consequences on both sides and take account of open justice, public accountability and Parliamentary scrutiny.
5. Application. The evidence disclosed a real risk that publication would alert the Taliban, enable acquisition of the dataset and expose many thousands of people to death or serious injury. Discharging the super element would not permit meaningful scrutiny of the relevant policy decisions because the link between the data breach and the relocation scheme would remain protected. It might also unravel protection of the underlying information. A short continuation was therefore justified, but the changing circumstances required strict directions addressing safety decisions, the spread of information and communication with Parliament.

This was a first-instance continuation hearing. The judgment records the following prior procedural steps:

• King’s Bench Division duty judge: On 1 September 2023 Robin Knowles J granted a super-injunction contra mundum and fixed a return date.
• Media and Communication List: On 18 September 2023 Nicklin J directed a hearing before a nominated judge to consider continuation or discharge.
• High Court (King’s Bench Division): Following hearings on 31 October and 1 November 2023, Mr Justice Chamberlain continued the injunction for four weeks on 3 November 2023.